Althouse: "Just because 'actual malice' is a tough standard to meet doesn’t mean you aren’t in big trouble if someone meets it."

July 7, 2009

"Just because 'actual malice' is a tough standard to meet doesn’t mean you aren’t in big trouble if someone meets it."

When the threat of a defamation suit really should scare a blogger.

23 comments:

MadisonMan said...: I followed the links, and the quote that stood out was that deposing Sarah Palin would be a very bloggable event. How true.; 7/7/09, 8:39 AM
Invisible Man said...: I followed the links, and the quote that stood out was that deposing Sarah Palin would be a very bloggable event. How true.

Me thinks that the court transcriber would be the saddest person of all if that happened.; 7/7/09, 8:46 AM
rhhardin said...: You can avoid actual malice by not having actual malice.; 7/7/09, 8:52 AM
A.W. said...: rhhardin

actually not quite. "actual malice" includes a reckless disregard for the truth. Its one of those "code words" lawyers use.; 7/7/09, 9:04 AM
Hoosier Daddy said...: I recall Bill Clinton sending some threatening letters to ABC over that 9/11 movie which didn't portray him in such a glowing manner. Yet that was a movie.

I'm not sure why by virture of being a public official, journalists/bloggers should be able to use the 1st Amendment as a shield to just make shit up about an elected official. I'm sorry but couching it as a 'rumor' just doesn't fly anymore, especially in light of the number of high profile outright fabrications that we've seen over the years.; 7/7/09, 9:11 AM
rhhardin said...: Would a careful disregard for the truth be okay?

A studied disregard?; 7/7/09, 9:12 AM
rhhardin said...: What are the acceptable kinds of disregard?; 7/7/09, 9:13 AM
A.W. said...: rhhardin

Lol. Hard to say.; 7/7/09, 9:15 AM
A.W. said...: Btw, i would love to find a link to a transcript or whatever, that contains the allegedly defamatory comments. so far i have seen only characterizations of them, not quotations.; 7/7/09, 9:20 AM
Anonymous said...: Hoosier wrote: "I'm not sure why by virture of being a public official, journalists/bloggers should be able to use the 1st Amendment as a shield to just make shit up about an elected official."

That is true, but I think that you've got to remember that we need to make sure that people can still ask questions and follow leads, so it's a really fine line, which doens't usually apply to statements about normal (non-public) figures. For example, even though I'm sure we agree that they're absurd, do you really want the folks that are questioning Obama's citizenship to literally be barred from blogging on the issue? (or, conversely, even those nutty Trig truthers should get to explore their theories without fearing that they will cross some poorly defined line).

It seems like we need to adjust the standard a little, so that statements that are demonstrably untrue are actionable (for example, the Palin makes rape victims pay for rape kits rumor, or that she is a super-creationist who thinks people and dinosaurs lived at the same time). But it's a difficult issue, either way.; 7/7/09, 9:54 AM
Richard Fagin said...: We need to adjust the standard a lot. Even the term "actual malice" shoukd be changed becsause it confuses jurors into believing ill intent is required, when it is only necessary to prove reckless disregard for the truth. Just ask Bill Westmoreland.

It is no accident that the kind of "journalism" practiced these days followed N.Y. Times Co. v. Sullivan. If people couuld be more easily held liable for publishing out and out falsehoods concerning public figures, the problem suffered by the likes of Sarah Paling would be substantially reduced.; 7/7/09, 10:43 AM
Hoosier Daddy said...: That is true, but I think that you've got to remember that we need to make sure that people can still ask questions and follow leads, so it's a really fine line, which doens't usually apply to statements about normal (non-public) figures.

I guess for me I just question the veracity of anything I read anymore, especially so called 'rumors' and 'speculation'. Its an undeniable fact that there are numerous instances of MSM reports that were flat out fabrications solely for the purposes of being a hit piece. I mean it really has come to the journalistic equivalent of 'Do you still beat your wife?' I'm sorry but no public official should have have to be put in the position of giving such questions any hint of legitimacy by having to answer or do the no comment routine.; 7/7/09, 10:49 AM
Floridan said...: Where were all you people when the Clintons were being accused of engineering the murders of Vince Foster, William Colby, Ron Brown, etc?; 7/7/09, 11:21 AM
Jim said...: Aaron -

I refuse to do Moore the favor of linking to her blog so you can read the comments, but to paraphrase her she posted on Palin's resignation and said there were "rumors" that she was about to be indicted and that was why she was stepping down.

The problem for Moore is that the only "rumors" that were circulating started in depths of the Alaskan Democratic Party and perpetuated in such logic and truth vacuums like dKos and other fever swamps of the uber-crazed, have been floating around since 2002, and have never in any way had any substance to them. She knew that. She was flat out lying in yet another of her attempts to smear Palin.

As I said yesterday, I'm pretty positive that Moore wasn't the primary target of the defamation threat: it was actually aimed over her head to the Democratic Party which is using Moore as their front. It was a veiled threat to them that if they didn't back off, that Palin would file suit and then go digging in their discovery for every connection and communication that Moore had with the Democratic Party leadership with regard to spreading rumors about Palin.; 7/7/09, 11:44 AM
Anonymous said...: Aaron --

I don't really think it's all that much code. If you carelessly or purposefully disregard the truth that disproves whatever you want to spread, or learn that there is zero basis and so is fabrication, then do it anyway, that's malicious. Seems more like a formalized way of saying "Horse shit, you knew what you were doing regardless of your disclaimers."; 7/7/09, 12:00 PM
Hoosier Daddy said...: Where were all you people when the Clintons were being accused of engineering the murders of Vince Foster, William Colby, Ron Brown, etc?

I was at work. What's your point? If the Clintons felt those were baseless accusations they should have responded. Clinton was more pissed off over an unflattering portrayal of him in a 9/11 movie then he was being accused of murder.; 7/7/09, 12:04 PM
halojones-fan said...: Seems to me that repeating "rumors" and "statements from sources" and "speculations" are still speech, and the speaking party can be held liable if that speech is damaging. "Someone else said it and I just repeated it" is a cry for leniency in sentencing, not an absolution. It's like arguing that having run people over in the street and killed them is actually Ford's fault; they're the ones that made a big powerful car, all I did was drive it...; 7/7/09, 12:10 PM
XWL said...: Shouldn't this post have an "Andrew Sullivan" tag?; 7/7/09, 12:51 PM
Synova said...: Anyone remember the election year draft scare?

First someone sent emails to college students saying that someone (The Evil Bush Administration) wanted to reinstitute the draft. And then the news services, instead of finding out if it were true or not and reporting on *that*, found a sympathetic mother of draft age sons (who turned out to be a politically active anti-war sort, but they didn't tell you that) and interviewed her about her "fears."

I tend to favor the notion not to attribute to malice what can be explained by incompetence... I think that the news services are populated by "journalists" who really don't have the brains to do something like that on purpose.

But incompetence or malice, it was absolutely a case of someone spreading a rumor for political ends and then the "legitimate" journalists and news services reporting on the reaction to the rumor without ever looking at the question if the rumor had basis or not.

In this case of Palin's... MSNBC or even HuffPo reporting on the *rumor* spread by Moore are doing pretty much the same thing.; 7/7/09, 12:55 PM
Synova said...: "If the Clintons felt those were baseless accusations they should have responded. Clinton was more pissed off over an unflattering portrayal of him in a 9/11 movie then he was being accused of murder."

I don't know if the issue determining if someone should respond or not is the baselessness of what was said. I think it has to do with how likely a person feels it is that other people will believe it.

Most people, even those who let themselves play with the shivery possibility that the Clinton's had Vince Foster murdered, don't believe it.; 7/7/09, 1:01 PM
Jim said...: Synova -

"I don't know if the issue determining if someone should respond or not is the baselessness of what was said. "

It also depends on what it's going to cost to respond. As I mentioned in a previous thread, I think the determining factor in the Clintons' decision to not pursue a defamation suit against their accusers was their own closet full of skeletons which they feared being opening in the inevitable discovery before a trial. There were ethics, and possible illegalities galore, hidden there (Rose Law Firm, cattle futures, etc.), and I'm sure that they made a calculation that they stood to lose a whole lot more by pursuing a suit than they would ever gain.; 7/7/09, 1:14 PM
Unknown said...: Shannyn Moore mentioned in one of her HufPo articles that [an officer of a local Democratic Party chapter] called a meeting at his house just after Palin was announced as the VP candidate. The best I can tell, about 9 or so bloggers were there. They agreed to post on each others blogs and email each other every day.
Moore claims a lot of attorneys wrote her that they would like to depose Palin. Personally, I'd would *love* for those daily emails to be subpoenaed and have those Alaskan bloggers deposed. By an attorney with RICO experience. By an attorney experienced in unraveling conspiracies. I have a feeling that proof of "actual malice" might not be so hard to prove after all.; 7/7/09, 3:17 PM
Jim said...: Phoebe -

"I have a feeling that proof of "actual malice" might not be so hard to prove after all."

Exactly. And the fact that the Obama campaign via Axelrod was directly responsible for those meetings taking place is what Palin's letter was about.

The Leftists here can attempt to cover for the coordinated smear campaign, but there is no doubt that Moore and Sullivan and the other bloggers who have been the most vociferous in their attacks on Palin were started down that road by Obama himself.

Her defamation threat had little to do with a blogger that most people had never heard of outside of the HuffPo/DNC/DailyKos bubble before this letter was written. It was directed straight at Obama, Axelrod and the DNC itself. It was a warning that Palin isn't McCain, and she's not going to roll over and take their lies and half-truths lying down. She fully intends to go after them, and hold them accountable.

How many supporters do you think Obama would have left if the general public were aware of just how intimately involved he and his campaign were in starting all the rumors about Palin? In filing frivolous ethics complaints? In the underhanded feeding of dishonest memes to partisan attack dogs?

Outside of the loyal Leftists who would actually be proud of a bloody corpse if Obama was found standing over it, there would be precious few.

I'd venture to say that, outside of the "dead-enders" here and elsewhere, you're going to see a let up in the outright lies being told about Palin. She put them on notice that she knows where they're coming from and she has the means and ability to expose them if they continue.; 7/7/09, 3:59 PM